Is Soy Milk to Milk as E-Books are to Books?

Is Soy Milk to Milk as E-Books are to Books?

 I don't think we need a lot of scientific research to determine why people drink soy milk, almond milk and coconut milk. I'll save some time and list them, not in any particular order:

  • They are lactose-intolerant
  • They are living a vegan lifestyle
  • They prefer the taste to cow's milk
  • They prefer the nutritional profile to cow's milk

All four of these reasons have one thing in common:  they depend on the consumer understanding that soy milk, almond milk and coconut milk are not cow's milk. So why on God's green earth did someone sue claiming that by labeling the products as soy milk, almond milk and coconut milk, they were confused into thinking the products contained cow's milk?

I will not cast aspersions, because I don't need to. U.S. District Judge Samuel Conti of the Northern District of California took care of this for me. 

The case was Ang v. Whitewaves Food Co., and it involved two issues, one of which we won't get into at all:  the question of whether evaporated cane juice is "sugar" [an enhanced version of this opinion is available to subscribers]. The other was the claim that by labelling products as soy milk, almond milk and coconut milk, the producers of these products violated the "standard of identity" for milk. The problem is that the regulation they claim "defines" milk is not its standard of identity at all. 

The regulation the point to, 21 CFR 131.110(a), provides, "Milk is the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows."  But since we actually are capable of reasoning and using language in a non-mechanical way, we can readily understand that this is not the definition of "milk." This is a definition of milk, what you might call the default definition. When we say "milk" without an adjective, in a food context, we mean cow's milk. Milk in a dairy case that says only "milk" is assumed to be cow's milk, and indeed it had better be, or it is likely mislabeled. 

But within the same set of regulations that include this definition are a whole bunch of definitions that make it clear that the FDA is not telling anyone that the word "milk" must only apply to cow's milk, despite the plaintiffs' contentions. For example, in the definition of "roquefort cheese", a cheese that cannot be made from cow's milk, the milk must be "of sheep origin", despite a cross-reference to a regulation that refers only to cow's milk. 

The court, without looking at my little roquefort definition, reaches the same conclusion:

Moreover, it is simply implausible that a reasonable consumer would mistake a product like soymilk or almond milk with dairy milk from a cow. The first words in the products' names should be obvious enough to even the least discerning of consumers. And adopting Plaintiffs' position might lead to more confusion, not less, especially with respect to other non-dairy alternatives such as goat milk or sheep milk.

On that basis, the court found that the claims under state law were preempted, because federal law generally prohibits states from imposing labeling requirements inconsistent with federal regulations. 

The court wasn't done with the plaintiffs, however. Even if not preempted, the court held, citing the famous Crunchberry case we blogged about here, the plaintiffs' claims were simply not plausible. 

Plaintiffs essentially allege that a reasonable consumer would view the terms "soymilk" and "almond milk," disregard the first words in the names, and assume that the beverages came from cows. The claim stretches the bounds of credulity. Under Plaintiffs' logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.

As I said at the outset, these products exist as a substitute for cow's milk for various reasons that give consumers a choice of beverage. No one seeks out these products assuming they are getting cow's milk; they seek them out because they are seeking alternatives to cow's milk. Judge Conti, who is a 91-year old senior U.S. District Judge appointed by Richard Nixon, deserves credit for so efficiently seeing through the plaintiffs' claims. 

Read additional articles at the Food Liability Law Blog

For more information about LexisNexis products and solutions connect with us through our corporate site.